David RIVERO, Plaintiff and Respondent,
v.
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, et al., Defendants and Appellants.
Court of Appeal, First District, Division Two.
*82 Cathy L. Arias, Richard A. Chavez, Burnham Brown, Oakland, Glenn Rothner, Emma Leheny, Ricardo Ochoa, Rothner, Segall & Greenstone, Pasadena, Attorneys for Appellants.
William Campisi, Jr., Law Office of William Campisi, Jr., Berkeley, Attorneys for Respondent.
HAERLE, Acting P.J.
I. INTRODUCTION
David Rivero sued numerous individuals and entities, including the American Federation *83 of State, County and Municipal Employees, AFL-CIO, and its Local 3299 (collectively, the Union). He charged the Union with libel, slander, conspiracy to libel, intentional infliction of emotional distress, and intentional and negligent interference with economic relationship. The Union filed a special motion to strike pursuant to Code of Civil Procedure section 425.16,[1] commonly called the anti-SLAPP statute (see Equilon Enterprises v. Consumer Cause, Inc. (2002)
II. FACTUAL AND PROCEDURAL BACKGROUND
Rivero filed this action on November 14, 2000. He later twice amended his complaint. Rivero's most recent complaint alleges in relevant part as follows: In November 1999,[3] Rivero was a supervisor of janitors at the International House on the campus of the University of California at Berkeley and had been for approximately 18 years.
During October and the beginning of November, Rivero was absent from work due to an industrial injury. While he was absent, three of the employees he supervised accused him of theft, extortion and favoritism. On November 15, Rivero attempted to return to work after his convalescence, but was informed that he was suspended from work and would remain suspended while the allegations of wrongdoing were investigated. In approximately March 2000, it was found that the allegations of wrongdoing could not be substantiated. Rivero's position as supervisor was nevertheless terminated and he was assigned to the position of dishwasher and pot scrubber in the kitchen at the International House. Rivero refused to accept this position and was terminated.
As to the Union's part in these affairs, Rivero alleged that the Union distributed three documents containing false information. The first document, distributed in May 2000, was an "AFSCME Local 3299 UC Contract Campaign News," which contained an article entitled "Custodians Suspend Supervisor!" The article stated, "Fed up with a supervisor who solicited bribes, hired family members and practiced favoritism, custodians at UCB's International House decided enough was enough. [¶] Energized by the example of UCLA workers who took action late last year, the custodians confronted their manager as a group. They had facts and evidence in hand, and convinced management to suspend the supervisor on the spot. [¶] I-House custodians wasted no time in tackling another problem: they were the only workers required to punch a time clock. They presented the issue to management and the time clock came down. It's about time!"
The second document of which Rivero complained was distributed in November and bore the title "We Suspended Our Supervisor!" The text of the document was as follows: "The janitors at the International House were victims of constant mistreatment, disrespect, and abuse from management. [¶] Their custodial supervisor was hiring family members and harassing hard working employees. He was unfair, *84 abusive, and playing favorites, [¶] Although the janitors repeatedly asked management for justice, U.C. refused to solve the problem. So the workers decided to organize and take action. [¶] On November 15, ... the janitors marched into management and declared they would no longer work under their abusive supervisor. [¶] Because of the janitors' courage and unity, management was forced to suspend the custodial supervisor, and the janitors have pledged to make sure he doesn't return. [¶] Let's Take Action! [¶] Let's Get Organized! [¶] Let's build a strong union at U.C. Berkeley!"[4] The center bottom of the flier contained the following message in small text: "We are building a strong union at U.C. Berkeley. To join call (510) 663-5939 Ext. 25."
The third document, prepared in November or December, principally contained space for people to print and sign their name and indicate their "Room Number." Above this section were the words: "Stand Up for Justice! [¶] The custodians of the International House at U.C. Berkeley were victims of constant mistreatment, disrespect, and abuse from management. Custodians say their supervisor was even soliciting bribes. [¶] We the undersigned demand an end to management's pattern of abuse and support the custodian's fight for fairness and respect."
Rivero charged the Union with libel and slander, conspiracy to libel, intentional infliction of emotional distress, and intentional and negligent interference with economic relationship. The Union filed a special motion to strike pursuant to section 425.16. The Union argued that section 425.16 applied to Rivero's claims because "[t]he conduct at issue here is speech regarding the working conditions of International House employees supervised by [Rivero]. Such conduct is clearly in furtherance of expression concerning a labor dispute, and thus protected by the U.S. Constitution. [Citation.]" The Union further argued that Rivero had not met his burden of demonstrating a probability of prevailing on his claims against the Union. Rivero opposed the motion.
The trial court denied the Union's motion. In a 24-page order, the court concluded (1) the Union had not met its burden of establishing that Rivero's allegations arise from "`conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest'" and (2) Rivero met his burden of establishing a probability of prevailing on his claims.
III. DISCUSSION
A. Section 4.25.16
Section 425.16 provides, in relevant part, that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) Courts have interpreted this language as creating a "two-step process for determining whether an action is a SLAPP." (See Navellier v. Sletten (2002)
In the first step, "the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue,'...." (Equilon, supra,
If the defendant meets this burden of demonstrating that the complaint comes within the provisions of section 425.16, the burden then shifts to plaintiff to demonstrate a probability that he or she will prevail on the claim. (§ 425.16, subd. (b); Equilon, supra,
"On appeal we review independently whether the complaint against the appellant arises from appellant's exercise of a valid right to free speech and petition and if so, whether the respondent established a probability of prevailing on the complaint. [Citation.]" (Davis Committee, supra,
B. The Public Issue Requirement
The Union contends that Rivero's allegations fall into the last category of section 425.16, subdivision (e), because its alleged conduct was "in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (See § 425.16, subd. (e)(4).) The Union offers several theories to support its contentions. For one, the Union argues that the "abusive supervision of employees throughout the University of California system is an issue of particular *86 public interest because it impacts a community of public employees numbering 17,000." For another, the Union contends that unlawful workplace activity is a matter of public interest particularly where it occurs at a publicly-financed institution.
Few published cases have interpreted the terms "public issue" and "public interest" as they are used in section 425.16, subdivision (e). Damon v. Ocean Hills Journalism Club (2000)
Damon then filed a defamation complaint against six Association members who had authored letters or articles published in the Village Voice criticizing his performance, the two Board members who had supported his removal and the Association club that published the Village Voice. (Damon, supra,
In affirming the trial court's decision, the appellate court considered whether the topics of the allegedly defamatory statements concerned "issue[s] of public interest." (Damon, supra,
The appellate court concluded that the allegedly defamatory statements concerned a public issue. (Damon, supra, 85 Cal.App.4th at pp. 479-480,
Second, the court noted that the "statements were made in connection with the Board elections and recall campaigns. `The right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. "Public discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment."` [Citations.]" (Damon, supra,
In Sipple v. Foundation for Nat. Progress (1999)
Sipple filed a complaint for various causes of action, including libel, against Mother Jones and the author of the article. (Sipple, supra, 71 Cal.App.4th at pp. 230-231,
Sipple appealed, arguing in part that his treatment of his previous wives was not a public issue within the meaning of section 425.16. (Sipple, supra,
Division Three of the Second District considered what constitutes a matter of public interest in its decision Church of Scientology of California v. Wollersheim (1996)
In Seelig v. Infinity Broadcasting Corp. (2002)
Plaintiff sued the broadcast cohost, the on-air producer and others, alleging a variety of causes of action including slander per se and invasion of privacy. (Seelig, supra,
On appeal, Division Five of this district concluded that defendants' comments were made in connection with an issue of public interest. (Seelig, supra,
Other cases offer a more cursory consideration of the question of what constitutes a public issue or an issue of public interest. In Ludwig v. Superior Court (1995)
In M.G. v. Time Warner, Inc. (2001)
None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subject statements either concerned a person or entity in the public eye (see Sipple, supra,
The Union disagrees, arguing that any time a person criticizes an unlawful workplace activity the statements concern a public issue because public policy favors such criticism. However, if the Union were correct, discussion of nearly every workplace dispute would qualify as a matter of public interest. We conclude, instead, that unlawful workplace activity below some threshold level of significance is not an issue of public interest, even though it implicates a public policy. The Union has not met its burden of establishing that its allegations concerning the situation at the International House exceed that threshold level.
Anticipating this conclusion, the Union also argues that the unlawful workplace activity in this instance is sufficiently significant because Rivero worked at a publicly-financed institution. Again, the Union's argument sweeps too broadly; under their argument, every allegedly inappropriate use of public funds, no matter how minor, would constitute a matter of public interest. However, the theft of a single pencil or the improvident purchase of a single piece of inexpensive computer hardware cannot amount to a public issue. Instead, more significant waste or abuse of funds will rise to the level of a public issue. For example, in Braun v. Chronicle Publishing Co. (1997)
Here, however, the Union has failed to establish that the actions of a supervisor of eight custodians rose to the level of a public issue. In fact, the Union's motion to strike does not offer any detail regarding the nature of Rivero's alleged acts of bribery, nepotism, theft and extortion, even though it is the moving party's burden to demonstrate that the complaint comes within the provisions of section 425.16. (Equilon, supra,
The Union also attempts to portray the situation involving Rivero as affecting more than the eight individuals he supervised. The Union argues that the circumstances at International House relate to the Union membership's generalized concern regarding disrespectful supervision and of the broader issue of abusive supervision throughout the University of California system. The Union also claims that it included the information about the situation at the International House in the three documents because it wanted to provide an example of the steps custodians can take to stop misconduct. However, information that can be used as an example or as a motivator is not the same as *91 information that has intrinsic value to others, such as information that a person's home might be in danger of exploding (see Dowling, supra,
Moreover, the Union's use of the information in its publications should not turn otherwise private information into a matter of public interest. If publication were sufficient, anything the Union published would almost automatically become a matter of public interest. For example, if the Union reported in its newsletter that a supervisor arrived late for work last Wednesday, it could then argue that tardiness in supervisors was a matter of concern in the union membership. Alternatively, the Union could publish information in an effort to increase its membership vis-à-vis a competing union, as the Union did here, and thereby turn its purely private issue into a public one. If the mere publication of information in a union newsletter distributed to its numerous members were sufficient to make that information a matter of public interest, the public-issue limitation would be substantially eroded, thus seriously undercutting the obvious goal of the Legislature that the public-issue requirement hav e a limiting effect.
The Union contends that this case is similar to M.G., but we disagree. In M.G., the publication occurred in a major magazine and the information, whose disclosure was the subject of the lawsuit, was used to address the "broad" and "general" topic of child molestation in youth sports. (M.G., supra,
The Union offers a third theory (arguably, from the record before us, the only theory offered the trial court) for finding that its conduct concerned a "public issue or an issue of public interest," namely, that the allegedly defamatory statements arose in the context of a major labor dispute. The Union relies on Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999)
In Monterey Plaza, the Hotel Employees & Restaurant Employees Local 483 (HERE) filed unfair labor practice charges with the National Labor Relations Board (NLRB) against Monterey Plaza Hotel (the hotel). (Monterey Plaza, supra,
Eventually, the hotel entered into a consent agreement that settled all items except the dispute as to the two discharged housekeeping employees. (Monterey Plaza, supra,
Meanwhile, however, a story about the labor dispute, including an interview with a union organizer, had been televised on a local news channel. (Monterey Plaza, supra,
The hotel appealed the trial court's ruling. (Monterey Plaza, supra,
Unlike Monterey Plaza, the dispute between Rivero and the employees he supervised was an isolated incident and was not part of a larger union dispute. The Union disagrees, describing a larger union dispute that included negotiations for a new contract between it and the University of California, dealing with the University's decision to close the Mt. Zion hospital, representing employees in grievances and helping employees who were facing abusive supervisors. However, the Union's citations to the record do not support these assertions. Moreover, the Union has described not a larger union dispute, but merely some of the ongoing functions of an active labor union.
The Union also relies on Macias, but that case is not applicable, either. In Macias, the plaintiff and defendant had both run for the presidency of a union local. (Macias, supra,
On appeal, plaintiff argued that section 425.16 "does not apply to campaign statements made in a union election." (Macias, supra,
The court concluded, "Where, as here, a candidate speaks out on issues relevant to the office or the qualifications of an opponent, the speech activity is protected by the First Amendment. [Citation.] `The right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. "Public discussion about the qualifications of those who hold or wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment." [Citations.]....' ... [¶] [Plaintiffs] contention that the publication did not involve a public issue is without merit. The public issue was a union election affecting 10,000 members and her qualifications to serve as president." (Macias, supra,
Macias is clearly distinguishable. The campaign activity at issue in that case represented the quintessential subject of First Amendment protection. (Macias, supra,
The Union also argues that the subject of this complaint is a labor dispute within the meaning of section 527.3, subdivision (b)(4)(iii), and hence is a public issue. Neither Monterey Plaza nor Macias holds that all labor disputes arise from activity protected by the anti-SLAPP statute. Nor do we think such a conclusion would be proper. Section 527.3, subdivision (b)(4)(iii), defines a labor dispute as "including] any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment regardless of whether or not the disputants stand in the proximate relation of employer and employee." Under this definition, nearly all aspects of union activity qualify as a labor dispute, but surely not every minor union activity rises to the level of a matter of public interest. Thus, even if the subject of this complaint concerned a labor dispute within the meaning of section 527.3, subdivision (b)(4)(iii), and even if that definition of labor dispute applies in this context[5], those findings would not compel the conclusion that the situation between Rivero and his employees was a public issue.
In sum, we are faced with "disagreement about what issues truly possess `public' significance," a question that the Supreme Court predicted would "inevitably ... arise." (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th *94 1106, 1122,
Because we conclude that the Union did not meet its initial burden of establishing that the complaint arises from protected activity, we do not consider whether Rivero met his burden of establishing a probability of success on the merits.
IV. DISPOSITION
We affirm.
We concur: LAMBDEN and RUVOLO, JJ.
NOTES
Notes
[*] Kennard, J., and Moreno, J., dissented.
[1] Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
[2] SLAPP is an acronym for "strategic lawsuits against public participation." (See Equilon, supra,
[3] Unless otherwise indicated, all further dates refer to 1999.
[4] At oral argument, counsel for the local union explained that the local had lost 15,000 of its 32,000 members to another union. The local union started a campaign to ensure that this loss of membership did not happen again and to improve representation of the remaining 17,000 members.
[5] The definition of "labor dispute" provided in section 527.3, subdivision (b)(4), is "for purposes of [that] section" and that section defines certain conduct that the court may not enjoin. (See, e.g., § 527.3, subd. (b).)